No further action can be taken on the same facts because the ECtHR case-law has changed

JUDGMENT

SUMMARY

The applicant, who is a British citizen, was accused in Florida of murder and attempted robbery with a firearm. He was arrested in the United Kingdom in 2003, and the US authorities demanded his extradition by assuring the British Government that the death penalty would not be imposed. In June 2006, the British Minister ordered his extradition. Mr Harkins complained unsuccessfully before the British courts that if he was issued he risked being sentenced to death or to life imprisonment without the possibility of conditional release.

Mr Harkins appealed before the European Court of Human Rights for the first time (Harkins and Edwards v. The United Kingdom, No 9146/07) and the Court held that there was no risk of breach of the Convention taking into account diplomatic assurances of non- application of the death penalty.

On 11 November 2014, Mr Harkins filed a second appeal before the European Court for the second time.He was based on Articles 3 (prohibition of inhuman or degrading treatment) and 6 (right to a fair trial) of the Convention.

The European Court of Human Rights rejected Harkins’ complaints regarding Article 3 as inadmissible on the ground that they were essentially the same as the complaints already dealt with by the Court in its first case and the subsequent case-law of the ECtHR does not constitute “new evidence” for the purposes of Article 35 § 2 (b) of the Convention, in order to allow a new appeal on the same matter.

PROVISIONS

Article 3

Article 6

Article 35 par. 2b

PRINCIPAL FACTS

The applicant, Phillip Harkins, is a British national who was born in 1978.

In 2000 Mr Harkins was indicted in Florida for first degree murder and attempted robbery with a firearm. He was arrested in the UK in 2003 and the US authorities sought his extradition. In a Diplomatic Note issued on 3 June 2005 the US Embassy assured the UK Government that the death penalty would not be sought. In June 2006 the British Secretary of State ordered Mr Harkins’ extradition. Mr Harkins then complained unsuccessfully before the British courts that, if extradited, he risked the death penalty or a sentence of life imprisonment without the possibility of parole. In 2007 the High Court found that there would be no risk of the death penalty if Mr Harkins were to be extradited and, in 2011, it found that a life sentence without the possibility of parole would not violate Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.

In the meantime, in 2007, Mr Harkins had applied to the European Court of Human Rights for the first time (Harkins and Edwards v. the United Kingdom, application no. 9146/07). In January 2012, a Chamber of the Court found that Mr Harkin’s extradition would not violate Article 3 of the European Convention. It rejected as inadmissible the complaint concerning the alleged risk of the death penalty, considering that the diplomatic assurances, provided by the US to the UK Government, were clear and sufficient to remove any risk of Mr Harkins being sentenced to death if extradited.

The Court also found that the imposition of a mandatory life sentence in the US would not violate Article 3. He had been over 18 at the time of his alleged crime, had not been diagnosed with a psychiatric disorder, and the killing had been part of an armed robbery attempt – an aggravating factor. Further, he had not yet been convicted, and – even if he were convicted and given a mandatory life sentence – keeping him in prison might continue to be justified throughout his life time. If that were not the case, the Governor of Florida and the Florida Board of Executive Clemency could, in principle, decide to reduce his sentence.

Mr Harkins was not extradited and following the ECtHR judgments in the cases of Vinter and Others v. the United Kingdom (nos. 66069/09, 130/10 and 3896/10, Grand Chamber) of July 2013 and Trabelsi v. Belgium (no. 140/10) of September 2014 he brought new proceedings before the domestic courts in which he argued that developments in the Court’s Article 3 case-law on life sentences without the possibility of parole were such as to require the re-opening of the proceedings. However, in November 2014. the High Court refused to re-open the proceedings,
finding that the ECtHR judgments in Vinter and Others v. the United Kingdom and Trabelsi v. Belgium had not recast Convention law to such an extent that his extradition would result in a violation of Article 3 of the Convention.

On 11 November 2014 Mr Harkins applied to the European Court a second time. Relying on Articles 3 (prohibition of inhuman or degrading treatment) and 6 (right to a fair trial) of the Convention, Mr Harkins complained about his extradition to the USA, arguing that if convicted in Florida he would face a mandatory sentence of life in prison without the possibility of parole.

THE DECISION OF THE COURT

Article 3 (prohibition of inhuman or degrading treatment)

First, the Court recalled that Article 35 § 2 (b) of the Convention prevented it from considering an application which was substantially the same as a matter it had already decided. An application would generally fall foul of this admissibility criterion where an applicant had brought a previous application which related essentially to the same person, the same facts and raised the same complaints, unless he advanced new information not previously considered by the Court In the case at hand, the Court noted that Mr Harkins’ complaints under Article 3 were substantially the same as those raised in his previous application (Harkins and Edwards v. the UK) lodged in 2007.

Furthermore, the facts upon which his original complaint had been based had not changed. He is facing the same charges in respect of the same criminal offences, and both the sentencing regime and clemency process in Florida are the same today as they were in 2012.

As to whether the development of the Court’s case-law following its judgment in Mr Harkins’ first application constituted “relevant new information” for the purposes of Article 35 § 2 (b), the Court declined to expand this notion beyond its ordinary meaning, i.e. new factual information (and not new legal argument). In this regard, the Court has adopted a rigorous approach in applying those admissibility criteria whose object and purpose, like that of the criterion in Article 35 § 2 (b), is to serve the interests of finality and legal certainty and to mark out the limits of its competence. The Court’s case-law is constantly evolving and, if jurisprudential developments were to permit unsuccessful applicants to reintroduce their complaints, final judgments would continually be called into question by the lodging of a fresh application, which would undermine the credibility and authority of those judgments. Moreover, the principle of legal certainty would not apply equally to both applicant and Government parties, as only an applicant, on the basis of subsequent jurisprudential developments, would effectively be permitted to “reopen” previously examined cases.

Accordingly, the Court rejected, by a majority, Mr Harkins’ complaints under Article 3 as inadmissible on the basis that they were “substantially the same” as the complaints already examined by the Court on 17 January 2012 in Harkins and Edwards, and its subsequent case-law did not constitute “relevant new information” for the purposes of Article 35 § 2 (b) of the Convention.

Article 6 (right to a fair trial)

The Court concluded that the facts of the case did not disclose any risk that Mr Harkins would suffer a flagrant denial of justice. Nor indeed had Mr Harkins himself suggested that the trial process in the USA would be unfair. The Court therefore declared, unanimously, Mr Harkins’ complaint under Article 6 inadmissible as manifestly ill-founded.